THESE TERMS OF SERVICE APPLY TO THE ACCESS TO AND USE OF THIS BRIGHTFUNNEL WEBSITE AND BRIGHTFUNNEL SERVICES. PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING ANY BRIGHTFUNNEL WEBPAGE, INFORMATION OR SERVICE. BY ACCESSING OR USING ANY BRIGHTFUNNEL WEBPAGE, INFORMATION OR SERVICE, WHETHER PURSUANT TO A SERVICE ORDER, FREE TRIAL OR OTHERWISE, YOU (THE “CUSTOMER”) AGREE TO AND ARE HEREBY BOUND BY THESE TERMS OF SERVICE AND ALL OTHER TERMS AND CONDITIONS INCORPORATED BY REFERENCE (TOGETHER, THE “TERMS”).

[LATEST REVISION: 06/01/2017]

Table of Contents

  1. BrightFunnel Service
  2. Customer Use & Obligations
  3. Fees & Payment
  4. Term & Termination
  5. Proprietary Rights
  6. Confidentiality
  7. Representations, Warranties, Indemnity
  8. Limitation of Liability
  9. Other Provisions

 

1. BRIGHTFUNNEL SERVICE

1.1.         The BrightFunnel service consists of access to and use of BrightFunnel’s proprietary marketing analytics platform, technical support, and professional services, as set forth in Customer’s Order Form (the “Service”).

1.2.         BrightFunnel will provide Customer and its Authorized Users access to and use of the Service for the term specified in the Order Form and during any renewal term, (together the “Service Term”). The number of users authorized to use the Service shall be set forth on the applicable Order Form.  This Agreement also governs Customer’s access to and use of the Service during any free trial, testing or demonstration period.

1.3.         BrightFunnel will make the Service’s online features available to Customer during the applicable Service Term, subject to periodic planned or emergency maintenance downtime or unavailability caused by circumstances beyond BrightFunnel’s reasonable control. BrightFunnel may engage third party hosting and other vendors to provide certain hardware, software, networking, storage, and related technology required to provide the Service.

1.4.          BrightFunnel will exercise reasonable efforts to maintain security of its systems and to remedy any security breaches. Customer data will be encrypted while at rest when stored on servers within BrightFunnel’s systems and during external transmission originating from BrightFunnel servers. Customer acknowledges that the technical processing and transmission of the Service may involve transmissions over various networks. Further information about data security may be found at BrightFunnel’s Security Policy BrightFunnel’s Security Policy.

1.5.         BrightFunnel may at any time modify, enhance, add new features, or discontinue any part of the Service, provided that any discontinuance of a Service feature will not materially affect the Service provided to Customer.

2. CUSTOMER USE AND OBLIGATIONS

2.1.        Customer may designate the number of users up to the number of accounts purchased under its Order Form (“Authorized User”). Each Authorized User must create a user account and is subject to the terms of this Agreement to the same extent as Customer. The Customer named in the Order Form is ultimately responsible for the compliance with this Agreement by its Authorized Users, and Customer is liable for any breach of the Agreement by its Authorized Users or any other Customer personnel. Customer may only designate Authorized Users who are Customer’s employees, consultants, contractors and subcontractors.  Customer and its Authorized Users are responsible for maintaining the security of their accounts and passwords. Customer will immediately notify BrightFunnel in the event of any unauthorized access to or use of any of Customer’s or its Authorized User’s accounts.  Customer may re-assign Authorized User accounts upon written notice to BrightFunnel.

2.2.         Subject to Customer’s compliance with these Terms, BrightFunnel grants Customer: (i) a limited, non-assignable, revocable right to access and use the Service specified in Customer’s Order Form for Customer’s informational and internal business use only, and (ii) a limited, non-exclusive, revocable, non-sublicenseable license to download, print and use BrightFunnel Content for Customer’s internal business use only.  “BrightFunnel Content” includes documentation relating to access or use of the Service, reports and results generated by the Service, the format and presentation of such documentation, reports and results, and any other text, charts, graphics, commentary, derived insights and other information generated, created or otherwise made available by the Service.

2.3.         Customer shall not: (i) reproduce, duplicate, copy, sell, resell, lease, sublicense, distribute, perform or display any Service or BrightFunnel Content to any third party; (ii) modify, make derivative uses of, or incorporate into any product offering (SaaS or otherwise) any Service or BrightFunnel Content; (iii) introduce or transmit any worms, viruses, malware or any code of a destructive nature onto or via the Service; (iv) interfere or disrupt networks connected to the Service or interfere with the ability of others to access or use the Service; (v) transmit through or store data on the Service platform or network which violates the rights of any individual or entity established in any jurisdiction; (vi) access or use the Service for monitoring the Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes; (vii) conduct any activity using the Service or BrightFunnel Content that is illegal or in violation of any applicable laws and regulations, including those pertaining to telecommunications, spam, privacy and import/export; or (viii) otherwise use any Service or BrightFunnel Content in violation of these Terms. Any violation of the above provisions is a material breach of these Terms.

2.4.         Customer use of the Service requires Customer to provide BrightFunnel certain of its business data and other business information (“Customer Data”). Customer is solely responsible for the accuracy, content and legality of Customer Data. It is Customer’s responsibility to ensure that it has full rights to provide and use the Customer Data with the Service, and such use is in compliance with all applicable law and regulations, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data

2.5.         Customer hereby grants BrightFunnel a limited, non-exclusive, worldwide, royalty-free, revocable, license to use, copy, distribute, modify, display and make derivative works of Customer Data to provide the Service to Customer. BrightFunnel may sublicense Customer Data to third party service providers solely for the purpose of providing the Service to BrightFunnel and Customer.

2.6.        BrightFunnel may use Customer Data and all Service results and reports generated with Customer Data for BrightFunnel’s business purposes, including benchmarking, analysis, and further development of the Service, provided that such Customer Data, Service results and reports are only used in an aggregate manner with other data and information, and anonymized so that no particular individual or company could be identified as the source of the data or information.

2.7.         If Customer installs or enables a third party application (“Third Party Applications”) for use with the Service, or accesses the Service from a Third Party Application, then Customer acknowledges and agrees that: (i) BrightFunnel may access and use Customer Data and basic account information from such Third Party Application, and may allow such Third Party Application provider to access Customer Data from the Service for provisioning or interoperation of the Third Party Application with the Service; (ii) Customer is solely responsible for ensuring that it has obtained all necessary rights, licenses and authorizations from the Third Party Application provider to allow for interoperability with the Service; and (iii) BrightFunnel will not be responsible for any disclosure, modification, loss or deletion of Customer Data by a Third Party Application provider. Customer is responsible to obtain all necessary rights, licenses and authorizations to use any Customer Data provided by a Third Party Application, and to authorize BrightFunnel to host, transmit and display such Customer Data.

2.8.        Customer may submit or provide to BrightFunnel feedback, suggestions, improvement ideas and other information (together “Feedback”) regarding the Service.  Customer shall not provide any Feedback that it deems confidential or proprietary.

3. FEES AND PAYMENT

3.1.         Customer shall pay all fees for the selected Service as specified in Customer’s Order Form (“Service Fee”). Customer agrees that: (i) the Service Fee is for the access to and use of the Service module and features selected, not actual usage by Customer; (ii) payment obligations are non-cancelable; (iii) Service Fees paid are non-refundable; (iv) the number of accounts purchased may not be decreased during the current Service Term (defined below); (vi) additional Service Fees will be incurred if Customer upgrades or purchases more Service during any Service Term; and (vii) additional pricing and payment terms may be set forth and agreed to by the parties on the Customer’s Order Form

3.2.         If Customer exceeds its number of Authorized Users, BrightFunnel may invoice Customer for such additional usage and Customer shall pay such invoice.

3.3.       All Service Fees are due and payable upon receipt of invoice by Customer.  Customer shall be responsible for all sales, use, value-added withholding or similar taxes or levies, whether domestic or foreign, except taxes based on the net income of BrightFunnel.

3.4.        If payment is not received within thirty (30) days of receipt of invoice, such late payment shall be subject to a service charge equal to 1.5% per month of the amount due (or the maximum legal rate, if less). If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, BrightFunnel reserves the right to suspend Customer’s access to the Service without liability to Customer, until such amounts are paid in full.

4. TERM AND TERMINATION

4.1.         The Service Term shall commence on the Effective Date Form and may be renewed upon the prior written agreement of both parties.  Either party may terminate the Service Term if the other party: (a) fails to cure any material breach of these Terms within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party. BrightFunnel may suspend Customer’s account immediately if a security breach arises from such account.

4.2.         Upon any termination of the Service Term, Customer shall immediately cease access to and use of the Service.  Following termination Customer shall have no further access to any Customer Data through the Service.  BrightFunnel may delete any Customer Data in its possession at any time after termination. Notwithstanding the above, Customer will continue to have the right to use the Service results and reports generated with Customer Data for Customer’s internal business use after the termination of the Service Term.

4.3.         Section 2.7, Sections 4.3 and 4.4, Section 5, Section 6, Section 7, Section 8 and Section 9 shall survive any expiration or termination of the Service Term

5. PROPRIETARY RIGHTS

5.1.         Customer retains all right, title and interest in Customer Data.  BrightFunnel is only granted a limited license to use Customer Data to provide the Service as set forth in Sections 2.5 and 2.6 above. With respect to Feedback provided to BrightFunnel relating to the Service, Customer hereby assigns to BrightFunnel all rights in such Feedback and agrees that BrightFunnel may, at its sole discretion, use such Feedback for any purpose.

5.2.         BrightFunnel and its licensors retain their respective legal right, title and interest in and to the Service, BrightFunnel Content and Feedback, including any and all intellectual property or other proprietary rights which exist therein (whether such rights are registered or unregistered, and wherever in the world those rights may exist), including without limitation copyrights, trade secrets, patent rights, utility models, moral rights, trademarks, service marks, logos, and other proprietary or similar rights, together with all applications relating to any of the foregoing. Customer is only granted a limited license to access and use the Service and BrightFunnel Content.  No other license or right is granted with respect to any other intellectual property of BrightFunnel or its licensors

5.3.         BrightFunnel shall own all right, title, and interest in and to any intellectual property resulting from any work performed to integrate the Service with Customer’s systems and data sources or to otherwise allow the Service to interoperate with Customer’s systems and data sources.

5.4.        Each party owns and retains all right, title and interest in its respective trademarks, trade names, services marks, trade dress and other business identifiers. Customer hereby grants to BrightFunnel a limited, non-exclusive, worldwide, royalty-free license to use Customer’s name and logo to solely identify Customer as a client of BrightFunnel on BrightFunnel’s website, presentations and other marketing materials.

6. CONFIDENTIALITY

6.1.        “Confidential Information” means information disclosed by a party (“Discloser”) to the other party (“Recipient”) that is marked “Confidential,” or that is confirmed in writing to be confidential within ten (10) business days of oral disclosure. Regardless of marking, (i) BrightFunnel’s Confidential Information includes the Service, the Order Form, BrightFunnel Content and any BrightFunnel business, product and service information not publicly known; and (ii) Customer’s Confidential Information includes Customer Data.  Confidential Information does not include any information that: (i) is or becomes publicly known through no fault of the Recipient; (ii) was known to the Recipient prior to disclosure by Discloser without violation of any confidentiality obligation to Discloser; (iii) is received by Recipient from a third party with no duty of confidentiality; or (iv) is independently developed by Recipient.

6.2.         Recipient will use the same degree of care to protect Discloser’s Confidential Information that it uses to protect its own confidential information, but no less than reasonable care.  Recipient shall only use Confidential Information as needed to perform under these Terms, and shall not disclose any Confidential Information to any third party except to Recipient’s personnel and subcontractors requiring the Confidential Information to perform under these Terms and who are bound by written confidentiality obligations with respect to the Confidential Information. Recipient may disclose Confidential Information if compelled by law, but will promptly give Discloser notice of such compelled disclosure to the extent permitted by law.

7. REPRESENTATIONS, WARRANTIES, INDEMNITY

7.1.           Customer represents and warrants that: (i) Customer has the legal power to agree to and abide by these Terms and any additional terms in the Order Form; (ii) Customer has all necessary rights and licenses to provide Customer Data for use with the Service; and (iii) Customer has all necessary rights and licenses to integrate or allow integration of the Service with Customer’s Third Party Applications, if any.

7.2.        ALL BRIGHTFUNNEL SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. BRIGHTFUNNEL DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL PRESERVE OR MAINTAIN ANY CUSTOMER DATA WITHOUT LOSS, OR THAT IT WILL MEET CUSTOMER’S EXPECTATIONS OR BUSINESS REQUIREMENTS. BRIGHTFUNNEL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BRIGHTFUNNEL. BRIGHTFUNNEL EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S DATA, CUSTOMER’S USE OF THIRD PARTY APPLICATIONS, OR CUSTOMER’S USE OF OR RELIANCE ON ANY SERVICE RESULTS OR REPORTS.

7.3.          EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW.7.4.          EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW.

7.4.         Customer will indemnify, defend and hold harmless BrightFunnel from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any third party claim (a “Claim”) relating to: (i) Customer Data, including any claim of intellectual property infringement, violation of privacy or other misappropriation of information; (ii) Customer’s use or provisioning of Third Party Applications; or (iii) Customer’s unauthorized access to or use of the any Service. With respect to any Claim, BrightFunnel agrees to: (a) promptly gives Customer notice of the Claim; (b) allow Customer sole control of the defense and settlement of the Claim (provided that BrightFunnel is relieved of all liability); and (c) give Customer all reasonable assistance at Customer’s expense.

7.5.         BrightFunnel will defend Customer against any third party claim, demand, suit or proceeding alleging the Customer’s authorized use of the Service violates the intellectual property of such third party (an “IP Claim”).  BrightFunnel will indemnify Customer from any damages, attorney fees and costs finally awarded in adjudication or court-approved settlement with respect to the IP Claim, provided that Customer: (i) promptly gives BrightFunnel notice of the IP Claim; (ii) allows BrightFunnel sole control of the defense and settlement of the IP Claim; and (iii) gives BrightFunnel all reasonable assistance at BrightFunnel’s expense.

7.6.       In the event of an IP Claim, BrightFunnel may, at its sole discretion, either: (a) obtain for Customer the right to continue to use the Service, or (b) replace or modify the Service so as to make it non-infringing. Notwithstanding the above, BrightFunnel shall have no liability to Customer with respect to any IP Claim based on: (x) an unauthorized use of the Service by Customer if the IP Claim would have been avoided but for such unauthorized use, or (y) Customer Data or Customer’s use or provisioning of Customer Data through Third Party Applications. The foregoing states BrightFunnel’s entire liability and Customer’s sole and exclusive remedy with respect to any infringement of any intellectual property rights of a third party arising out of or related to the use of the Service.

8. LIMITATION OF LIABILITY

8.1.         IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER FOR ALL DIRECT DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS DUE AND PAYABLE TO BRIGHTFUNNEL FOR SERVICES OVER THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM AT ISSUE.

8.2.         NEITHER PARTY SHALL BE LIABLE FOR DAMAGES, LOSSES OR CLAIMS ARISING FROM THE USE OF, OR RELIANCE ON, ANY RESULTS OR INFORMATION OBTAINED THROUGH THE SERVICE, ANY LOSS OF USE OF DATA, LOST OR INACCURATE DATA, FAILURE OF SECURITY SYSTEMS, INTERRUPTION OF BUSINESS, OR COSTS OF DELAY.

8.3.         IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

9. OTHER PROVISIONS

9.1.         Neither party may assign this agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer all or a portion of such party’s assets or voting securities. Except as expressly provided above, any attempt to transfer or assign this Agreement will be null and void.

9.2.        This Agreement shall be governed by the laws of the State of California without regard to its conflicts of laws provisions. The parties agree to the personal jurisdiction and exclusive venue of all actions in the state and United States federal courts located in San Francisco County, California.

9.3.        This Agreement constitutes the complete and exclusive agreement of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of the Agreement. No supplement, modification, or amendment of these Terms or the Order Form shall be binding, unless executed in writing signed by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Except for the Order Form, no provision of any other purchase order or other business form used by Customer will supersede or amend these Terms. If any provision of these Terms is deemed by a court of competent jurisdiction to be unenforceable or invalid, the Terms shall otherwise remain in effect.

9.4.        Any notice shall be in writing to the parties at the addresses set forth on the Order Form and deemed to have been received if given by overnight courier service, or by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

9.5.        Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms (except Service fee payment obligation) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot or natural disaster.

9.6.        The parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.